ANASTASIOS MANOLAKIS and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2009] AATA 543
•21 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 543
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/6092
GENERAL ADMINISTRATIVE DIVISION ) Re ANASTASIOS MANOLAKIS Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Senior Member L Hastwell Date21 July 2009
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and finds that although Mr Manolakis committed a participation failure on 2 July 2008, he did not commit such a failure on 22 July 2008 in that he has presented a reasonable excuse for his failure to attend an appointment on that date.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Newstart Allowance – participation failures – failure to attend appointments – compliance warning given – reasonable excuse – confusion as to whether appointment re-scheduled – prior history of reasonable compliance – decision set aside
Social Security Act 1991 ss 593(1), 624(1), 624(2A), 624(2B)
Social Security (Administration) Act 1999 s 63
REASONS FOR DECISION
21 July 2009 Senior Member L Hastwell 1. Anastasios Manolakis (the applicant) has been unemployed and receiving Newstart Allowance (NSA) continuously since 19 March 2007.
2. It is common ground that Mr Manolakis failed to attend two appointments with his Job Network Member, Holmesglen Employment (Holmesglen). These appointments were scheduled for 2 July 2008 and 22 July 2008.
3. These participation failures were referred to Centrelink who decided that Mr Manolakis had committed, without reasonable excuse, two NSA participation failures.
4. As a result of these participation failures, it was determined that NSA was not payable to him in the period 19 July 2008 to 30 July 2008.
5. On 8 August 2008 an Authorised Review Officer affirmed the decision to treat both of these non-attendances as participation failures. Mr Manolakis sought review of that decision to the Social Security Appeals Tribunal (the SSAT).
6. The SSAT affirmed the decision of the Authorised Review Officer on 19 November 2008. Mr Manolakis has sought review of the SSAT decision to this Tribunal.
7. The application for review by Mr Manolakis came before this Tribunal on 18 June 2009.
relevant legislation
8. Section 593 of the Social Security Act 1991 (the Act) provides the criteria for qualification for NSA in the following terms:
“593 Qualification for newstart allowance
(1)Subject to sections 596, 596A, 597 and 598, a person is qualified for a newstart allowance in respect of a period if:
(a) the person satisfies the Secretary that:
(i) throughout the period the person is unemployed; or
…
(b)in the case of a person to whom subparagraph (a)(i) applies—throughout the period, or for each period within the period, the person:
(i) satisfies the activity test; or
…”
9. NSA participation failures are dealt with under s 624 of the Act.
10. Section 624(1) provides as follows:
“624 Newstart participation failures
(1) A person commits a newstart participation failure if the person:
(a) fails to comply with a requirement:
(i)that was notified to the person under subsection 63(2) or 64(2) of the Administration Act; and
(ii) that was reasonable; and
(iii)the notification of which included a statement to the effect that a failure to comply with the requirement could constitute a newstart participation failure; or
(b) fails to satisfy the activity test; or …”
11. The relevant provisions of s 63 of the Social Security (Administration) Act 1999 (the Administration Act) are as follows:
“63 Requirement to attend Department etc.
(1) This section applies to a person if:
(a)the person is receiving, or has made a claim for, a social security payment; or
(b)the Department is contacted by or on behalf of the person in relation to a claim for:
(i)if the person is not undertaking full-time study and is not a new apprentice—a youth allowance; or
(ii) in any case—a newstart allowance;
to be paid to the person; or
(c)the person is the holder of, or has made a claim for, a concession card.
However, this section does not apply to a person to whom section 64 applies.
(2)If the Secretary is of the opinion that a person to whom this section applies should:
(a) attend an office of the Department; or
(b) contact the Department; or
(c) attend a particular place for a particular purpose; or
(d) give information to the Secretary;
the Secretary may notify the person that he or she is required, within a specified time, to:
(e) attend that office; or
(f) contact the Department; or
(g) attend that place for that purpose; or
(h) give that information;
as the case may be.
…”
12. If a person can provide a reasonable excuse for a failure, it is not a NSA participation failure. This is provided for in s 624(2) of the Act.
13. Sections 624(2A) and 624(2B) of the Act provide as follows:
“(2A)The Secretary must, by legislative instrument, determine matters that the Secretary must take into account in deciding whether, for the purposes of subsection (2), a person had a reasonable excuse for committing a newstart participation failure.
(2B)To avoid doubt, a determination under subsection (2A) does not limit the matters that the Secretary may take into account in deciding whether, for the purposes of subsection (2), a person had a reasonable excuse for committing the newstart participation failure referred to in subsection (1).”
14. The Social Security (Reasonable Excuse) (DEWR) Determination 2006 sets out the matters that must be taken into account in deciding whether a person has a reasonable excuse. None of these specific matters are relied on by Mr Manolakis in this case. Nevertheless, the Reasonable Excuse Determination does not prevent the Tribunal taking into account other matters if relevant.
issue for determination
15. The issue for determination by the Tribunal is whether Mr Manolakis committed NSA participation failures on 2 July 2008 and 22 July 2008, such that he was ineligible for NSA between 19 July 2008 and 30 July 2008.
16. In determining the issue, the Tribunal must have regard to the following matters:
·was Mr Manolakis correctly notified as to each of the relevant appointments; and
·did he have a reasonable excuse on either occasion for missing an appointment with his Job Network Member?
the hearing
17. The Tribunal received into evidence the T documents filed under s 37 of the Administrative Appeals Tribunal Act 1975. The Tribunal also had regard to a subsequent submission filed by the Department and received by the Tribunal as Exhibit R2. A copy of that submission was served on Mr Manolakis who advised the Tribunal by telephone that he would not be putting in any written submissions and did not intend to file any further material.
18. The matter initially proceeded to a hearing. In the course of that hearing, the Tribunal was forced to prematurely terminate the proceedings because of Mr Manolakis’ threatening, aggressive and abusive manner and because of his stated position that he would have no regard to any direction from the Tribunal as to how witnesses would be questioned or as to procedure.
19. The Tribunal then determined to finalise the matter by directing that the parties be given a further 14 days in which to make any further submissions to the Tribunal. The Department was also specifically directed to provide any further submissions that it wished to make with respect to compliance with s 624(1)(a)(iii) of the Act within 7 days, thereby providing Mr Manolakis with an opportunity to respond within the 14 day time line.
mr manolakis’ reasons for his failure to attend
20. Mr Manolakis represented himself at the hearing. He advised that he was not willing to give any evidence under oath or affirmation and that he intended to elicit evidence from the witnesses that he had subpoenaed which were Ms Kelly Anne Clarken, an employee of Holmesglen and Ms Maxine Harris, also an employee of Holmesglen.
21. He then tendered an affidavit which he asserted bore relevance to his application for review. The Tribunal received this affidavit as Exhibit A1.
22. Mr Manolakis confirmed to the Tribunal that the information he gave to the SSAT, as summarised at T2/3, was correct and that he agrees that he did not attend either of the relevant appointments on 2 July 2008 and 22 July 2008.
23. He acknowledges that he had notice of both appointments.
24. His reason for failing to attend on 2 July 2008 was because his computer crashed and he lost his electronic diary. It crashed one week before the interview.
25. The reason for his failure to attend on 22 July 2008 was that he became confused because he received an email the day before that appointment which advised him of an appointment for 4 August 2008. This confused him and led him to believe that the appointment on 22 July 2008 had been cancelled. It appears that Holmesglen had unilaterally initiated changes in interview times on at least one prior occasion in June 2008.
26. Mr Manolakis said that he had a reasonable excuse for failing to attend and further he asserted to the SSAT, and it became evident that he was putting the same assertions to this Tribunal, that members of Holmesglen staff was biased against him. They were not, in his mind, at all helpful in assisting him to obtain suitable employment.
27. After refusing to give any evidence to the Tribunal, Mr Manolakis then provided the Tribunal with an affidavit, the content of which appeared irrelevant to the proceedings before this Tribunal and the contents of which appeared to make allegations of criminal activity against numerous public figures. He claimed that the relevance of this affidavit was that it showed that the Commonwealth was prejudiced against him and he considered that as Centrelink was part of the Commonwealth, this indicated prejudice on the part of Centrelink.
28. The first witness, Ms Harris, gave brief evidence which was interrupted by Mr Manolakis’ outburst which resulted in the proceedings being terminated. She had been one of his employment advisors at Holmesglen.
other evidence
29. The Tribunal had regard to the material in the T documents.
30. The only document in the T documents that provides any information about the first appointment is contained at T21/99. There is no dispute that Mr Manolakis was aware of the first appointment and a note at T21/95 confirms the telephone advice to him of the appointment time and date. It includes the statement that a compliance warning was given.
31. There is then a file note to the effect that he failed to return calls and messages to discuss non-attendance at the appointment (T21/99).
32. Mr Manolakis was finally contacted by telephone by Centrelink as a result of his failure to attend the appointment on 2 July 2008. The date of contact was 18 July 2008 (T16). Mr Manolakis did give the explanation that his computer had crashed and he had lost his diary. It would appear that he was reconnected to a new appointment via an online diary. A compliance warning was recorded. Nothing on that document indicates the date of the next interview. Nevertheless, Mr Manolakis acknowledged that he knew of the interview on 22 July 2008.
33. An Incident Investigation Summary Screen (T16/66) confirms Mr Manolakis’ evidence to the SSAT that he did not attend the appointment on 22 July 2008 with his explanation being because of the notification to him on 18 and 21 July 2008 of an appointment on 4 August 2008, which led him to believe the appointment on 22 July 2008 had been re-scheduled.
34. A Provider Summary at T20/92 confirms that intensive support contacts with Mr Manolakis and the Job Network Member were re-scheduled on 18 and 23 June 2008. It is not clear who initiated the re-scheduling, but in the brief evidence before the Tribunal, Mr Manolakis suggested that Holmesglen previously re-scheduled an appointment with him at short notice.
discussion of the evidence
35. In making its decision, the Tribunal has relied on all the material available in the T documents, and the submissions presented by the Department. The Tribunal could not see the relevance of the affidavit submitted by Mr Manolakis.
findings of fact
36. The Tribunal makes the following findings of fact:
·On 20 June 2008, a Holmesglen employee contacted Mr Manolakis by telephone and advised him of the requirement to attend an appointment at their premises on Wednesday 2 July 2008 to review his circumstances and enter into an activity agreement.
·He was not given a written notice, pursuant to s 63 of the Administration Act, with respect to that appointment. However, a verbal “compliance” warning was given as to the consequences of a failure to attend.
·Two appointments with Holmsglen had been re-scheduled in June. These were the appointments immediately preceding the appointment of 2 July 2008.
·Mr Manolakis failed to attend the meeting on 2 July 2008.
·Mr Manolakis failed to return phone calls in the days following that meeting. When he eventually spoke to Centrelink by telephone on 18 July 2008, he advised that his computer had crashed and he had lost his diary information and had as a consequence missed the appointment.
·Mr Manolakis had been a client of Holmesglen since mid 2007 and he had previously attended appointments that he was required to attend.
·In the 12 months proceeding 2 July 2008, there was no evidence of any participation failures by Mr Manolakis. A statement to this effect is repeated in several places in the T documents and in particular at T18.
·On 18 July 2008, Mr Manolakis was advised by telephone of a reconnection employment with Holmesglen on 22 July 2008 at 2.00pm. A verbal compliance warning was given
·An automated system email message telling him of an appointment scheduled for 4 August 2008 was sent on the same day.
·A letter was sent to Mr Manolakis on 18 July 2008 advising him of an appointment with his Job Network Member at 2.00pm on 22 July 2008.
·On 21 July 2008 a further automated message was sent to him reminding him of the appointment on 4 August 2008.
·Mr Manolakis was genuinely confused with respect to the appointment on 22 July 2008 and he failed to attend that appointment as he believed it had been re-scheduled to 4 August 2008.
consideration and application of the law
37. The documentary evidence and the history of this matter as set out by the Tribunal, led the Tribunal to the conclusion that Mr Manolakis was genuinely confused with respect to the second appointment on 22 July 2008.
38. The Tribunal accepts the fairly scant evidence on the file that a compliance warning in accordance with s 624(1)(a)(iii) of the Act was given verbally to Mr Manolakis on each occasion that an appointment was made. Mr Manolakis did not dispute this aspect of the matter and he was given the opportunity to respond to the Department’s submissions on this point, but he did not respond.
39. The Tribunal is therefore satisfied that as a person who was receiving a Social Security benefit, Mr Manolakis could be required under the relevant provisions of the Administration Act to attend appointments with his Job Network Member. In this case, the requirements were reasonable and the Tribunal is satisfied that Holmsglen complied with the relevant provisions of the Administration Act and provided the appropriate warning to him that a failure to comply could constitute a NSA participation failure.
40. Nevertheless, if Mr Manolakis can establish that there was a reasonable excuse for his failure to attend either appointment, then the Tribunal can find that there was not a participation failure on that occasion.
41. The Tribunal does not accept as reasonable the excuse put forward by Mr Manolakis for missing the appointment on 2 July 2008. He has an obligation to keep appropriate records of appointments and cannot simply rely on an excuse that his computer has crashed. He needs to learn to keep a paper appointment diary or a calendar rather than rely entirely on the computer.
42. His failure to return calls in the days following the appointment suggests that there may have been other reasons for his failure to attend. He must have been aware that he had an appointment in early July. If his computer genuinely crashed, his obligation was to contact his Job Network Member to ascertain the date of the appointment.
43. With respect to the second missed appointment, the Tribunal has formed the view that his excuse was genuine. His Job Network Member had previously re-scheduled appointments and it is quite plausible that Mr Manolakis was genuinely confused by the two automatically generated emails that he received telling him of an appointment in August. When he was contacted by Centrelink with respect to this breach, the report suggests he was genuinely confused, followed by anger and abuse when he discovered he had missed an appointment and was going to be subject to a second participation failure.
44. Mr Manolakis appears to have some problems in his life at present as was evident from his presentation before the Tribunal and the affidavit that he submitted to the Tribunal. The Tribunal cannot condone the way in which he behaved at the hearing.
45. Nevertheless, when the case is viewed objectively on the basis of all evidence available, Mr Manolakis’ previous compliance with his Job Network Member’s requirements had been reasonable prior to the missed appointments.
46. In the circumstances, the Tribunal is prepared to give Mr Manolakis the benefit of the doubt with respect to the second participation failure on 22 July 2008. The Tribunal sets aside the decision under review and finds that although Mr Manolakis committed a participation failure on 2 July 2008, he did not commit such a failure on 22 July 2008 in that he has presented a reasonable excuse for his failure to attend an appointment on that date.
47. The Tribunal sets aside the decision under review.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: ...........J Coulthard...........................................
AssociateDate of Hearing 18 June 2009
Date of Decision 21 July 2009
Advocate for the Applicant Self-representedAdvocate for the Respondent Mr C Visser
Centrelink Legal Services and Procurement Branch
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